Article 155 of the General Tax Law provides that the procedure to be followed, according to the different cases of undue income, will be regulated by regulatory means for the recognition of the right to return. The present Royal Decree seeks, in particular, to implement the aforementioned procedure and the way in which undue income returns are carried out.

Certainly, the Spanish tax system today knows different taxes that give rise to refunds in favor of taxable persons, without the same ones responding properly to the concept of repayment of undue income. Even these returns may not match the persons who made the income and those who hold the right to the refund. However, this Royal Decree trusts the regulation of these other refunds to the own provisions of each tax, without prejudice to extending the application of certain rules to any refunds of a tax nature. On the other hand, if it collects this Royal Decree those tax refunds which, not having their origin in an undue income, are motivated by the gracious remission of a pecuniary sanction entered previously or by the extinction of a sanction of this class arising from a tax breach, as a result of the death of the offender after the entry of the sanction, but before the act of imposition of the sanction has been established.

The new provision introduces two transcendent modifications in the current order. First of all, a regulatory solution is given to the legal status of the statements-settlements or autoliquidations not yet verified by the tax authorities, opening a specific route for the return of undue income from the tax authorities. of these actions of the taxable persons or retainers. This solution is accompanied by a new regulation in the tax management procedure for requests for the rectification of a declaration-liquidation or self-settlement, which do not involve a refund of undue income, express or presumed resolution of these claims in an economic and administrative way, in accordance with the new wording of Article 121 of the Rules of Procedure for Economic and Administrative Claims. In addition, the right to the return of amounts entered when the corresponding settled tax liability was already prescribed is recognised. In any case, the adoption of this Regulation allows for simplification of the regulatory group and avoids the application of rules, still in force, which were not already adequate for the current tax management.

With this Royal Decree, finally, it is also intended to address the reasons set out by the Ombudsman's Institution, which, in successive reports, has been reiterating both the need to develop regulations Article 155 of the General Tax Law, properly regulating the procedure of returns of undue income of a tax nature, such as the convenience of improving the guarantees of tax obligations in this respect, reconsidering, in particular, the current treatment of the so-called challenge autoliquidations.

In its virtue, on the proposal of the Minister of Economy and Finance, with the approval of the Minister for Public Administrations, according to the State Council, and after deliberation by the Council of Ministers at its meeting of the September 21, 1990,

DISPONGO:

CHAPTER FIRST

General principles

Article 1. º Entitlement to the right to return.

1. Taxable persons or persons liable and other taxable persons shall be entitled to the return of the revenue which they have wrongly paid to the Treasury on the occasion of the payment of the tax debts.

2. The right to refund of undue income shall be transmitted to the heirs or successors in title of the initial holder.

In the event of a merger of the Entity that is the holder of this right, the same shall be transmitted to the new Entity or to the absorbent.

In the case of total or partial excision, the right may be transmitted, where appropriate, to the Entities benefiting from the division, in accordance with the provisions of the commercial law.

Art. 2. º Content of the right to return.

1. The amount to be returned as a result of an undue income shall be essentially constituted by the amount of income unduly paid and recognized in favor of the tax obligation.

2. They will also be part of the amount to return:

(a) The surcharge, costs and interests satisfied during the procedure when the undue income has been made by way of award.

(b) The legal interest applied to the amounts unduly paid, for the time elapsed from the date of their entry into the Treasury to that of the payment proposal.

The applicable legal interest rate will be the one in force on the day the undue income was made.

Art. 3. º Prescription.

1. It shall prescribe at five years the right to return undue income.

2. The limitation period shall begin to be counted from the day on which the undue income was made and shall be interrupted by any act of the tax obligor, or of his heirs or successors in title, to obtain the refund of the undue income or by any act of the Administration in which its existence is recognised.

3. If the refund is acknowledged, it will also prescribe the right to demand your payment if it is not claimed by the legitimate creditors. This period shall be counted from the date of notification of the recognition of that obligation.

CHAPTER II

Procedure for the recognition of the right to return

Art. 4. º Initiation.

1. The procedure for the recognition of the right to return may be initiated on its own initiative or at the request of a person concerned.

2. The procedure shall be opened ex officio by agreement of the competent organ of the Delegation or Administration of Finance or Customs where the income was made. If the income has been made in the General Directorate of the Treasury and Financial Policy or in a Centre, Ente or Agency of the State not integrated in the Ministry of Economy and Finance, the procedure shall be initiated by agreement of the The Management Centre or the Centre, Ente or the Body concerned.

3. If the procedure is initiated at the request of the person concerned, in the document submitted to the relevant organ of the tax administration, it shall state the circumstances provided for in Article 69 of the Law on Administrative Procedure, and in addition:

a) Your tax identification number.

b) Justification of undue income.

(c) A statement of the means chosen by which the return may be made and be able to choose between:

First. Bank transfer, indicating the account number and identifying data of the Bank Entity.

Second. Cross check against the current account of the Public Treasury at the Banco de España.

Third. Compensation in the terms provided for in Article 12 of this Royal Decree.

Art. 5. Instruction.

Initiated the procedure, the competent authority of the tax administration will develop the necessary actions to verify the origin of the return of undue income, being able to request the reports or actions that you judge necessary.

Art. 6. º Resolution.

1. Where, pursuant to the acts of instruction developed, the return is obtained, a decision shall be made by agreeing, either by the Director-General of the Treasury and the Financial Policy, if the revenue has been made in the Fund's Fund. directive, either by the head of the competent authority of the relevant delegation of finance, who, in another case, will also give the decision as appropriate, after hearing the person concerned as provided for in Article 91 of the Law of Administrative Procedure.

When the instruction in the file has been given to an organ of a Center, Ente or Agency of the State not integrated in the Ministry of Economy and Finance, the corresponding resolution shall be given by the holder of the said Center, or Body.

2. The decision to terminate this file shall be reclaimable on an economic-administrative basis, subject to the replacement, if the person concerned decides to apply it.

3. When the tax authorities request the return of undue income and the tax authorities do not notify their decision within three months, the tax authority may wait for the express resolution of their request or, without the need to report the default, to be considered dismissed, to the effect of deducting, in the face of this alleged refusal, the corresponding resource or claim.

Art. 7. No. Return Suppositions.

1. Recognition of the right to return of an unduly paid income in the Treasury shall be made under the procedure laid down in this Chapter, in particular in the following cases:

(a) When there has been a duplicity in the payment of debts or tax obligations.

(b) Where the amount paid has been higher than the amount of the tax liabilities or tax obligations settled by the Administration or self-imposed by the tax liability.

(c) When they have entered, after prescribing the action to demand their payment, tax debts settled by the Administration or approved by the tax obligor itself; as well as when the debts have been satisfied The right of the Administration to practice the timely settlement has been completed and the right of the Administration has been prescribed.

2. Likewise, where the Administration has, on its own initiative or at the request of the person concerned, any material, factual or arithmetic error suffered in a liquidation or other act of tax administration and the act to be corrected, it would have been The provisions of this Chapter shall apply, although it shall in any case be the case of the same body which issued the act to instruct the proceedings and to agree to the decision as appropriate, recognizing, where appropriate, the right to the return.

Art. 8. º Declarations-liquidations or autoliquidations.

1. Where a taxable person understands that a declaration-settlement or self-settlement made by him has resulted in an improper entry, he may request the refund of the unduly entered into the competent body of the Tax administration.

2. The application may be made once the corresponding declaration-settlement or self-settlement has been filed and before the Administration has been granted the final settlement or, failing that, the right of the Administration to determine the tax liability through timely settlement as the right to return undue income.

When the Administration has issued an interim settlement, the tax authority may still request the restitution of the unduly entered on the grounds of its initial declaration-liquidation or initial self-settlement, if the Provisional liquidation has been carried out by correcting those for reasons other than the one that now originates the tax obligation.

In the initiation and instruction of the procedure, the provisions of the third paragraph of Article 4. and in Article 5 of this Royal Decree shall be observed.

3. Having instructed the procedure, the Administration shall give the decision as appropriate, which shall be of a provisional settlement, and shall, where appropriate, apply the corresponding refund. After three months from the filing of your application without the tax administration notifying your decision, the tax liability may wait for the express resolution of your request or, without the need to report the default, consider The Court of Justice has ruled that, in the light of the alleged decision, the corresponding economic and administrative complaint, prior to the replacement, had to be taken if the person concerned decided to bring it up.

4. The right to return of an income made on the occasion of the filing of a declaration-settlement or self-settlement shall be deemed to be recognised where this results from the timely or final settlement of the institution competent.

Art. 9. Retentions and repercussions.

1. The retainers may request the return of the amounts unduly withheld and entered into the Treasury. This application may, in particular, be made in accordance with the provisions of Article 8. above, without prejudice, in any event, to the legitimation of the retained person in order to challenge the tax withholding act in accordance with the provisions of the Article 123 of the Rules of Procedure for Economic and Administrative Claims.

When the retention is declared excessive, the return will be made in favour of the person or entity that has supported it, unless it is, in the case of a withholding tax, deducted its amount in a post-settlement, in which case no refund shall be made.

2. The application for the refund of undue revenue corresponding to the tax quotas for compulsory impact may be made by the taxable person who has passed on them, in accordance with the provisions of Article 8. present Royal Decree, without prejudice to the provisions of Article 122 of the Rules of Procedure for Economic and Administrative Claims.

When the shares passed and entered are declared excessive, they will be returned to the taxable person who made the income of the same in the Treasury, without prejudice to the actions to be developed by the Treasury to compensate who will support the impact.

However, in the Value Added Tax, the passed shares shall be returned to the person or entity that has supported the impact, where the impact has been made by means of an invoice or equivalent document and those persons or entities have not deducted the amount of those quotas in a subsequent declaration-settlement and have not obtained their return. In no case shall the refund of any of the passed-on quotas have been returned or reimbursed by the tax authorities to the taxable person, to whom he or she endured the impact of the same or a third party.

CHAPTER III

Running the return

Art. 10. Execution.

1. Given the decision recognizing the right to return an undue income, the person concerned shall be notified and the appropriate payment order shall be issued in favour of the creditor, without waiting for the firm to that.

2. An immediate return of an income made to the Treasury will be made on the occasion of the payment of a tax liability:

(a) Where this is the result of compliance with the resolution of an appeal or complaint of an administrative nature or of a judgment or other judgment.

(b) Where this is the result of provisional or final settlements by the competent bodies.

(c) When deduced from an agreement or administrative decision, other than those referred to in the preceding letters, involving the revision or cancellation of administrative acts which would have resulted in the entry of a debt the amount of tax higher than the amount legally required.

3. In the cases referred to in the preceding paragraph, administrative or judicial decisions shall be enforced or enforced on their own terms, the testimony of the judgment or judgment or the corresponding agreement or resolution being sufficient. administrative or certified copy of the same so that the competent organs of the Administration proceed to carry out the return, after verifying simply that the agreement or resolution is firm or, not yet so, must be carried to pure and due effect and that the income was produced, without having already been returned or prescribed the right to its return, unless these last circumstances are already established in the same agreement or resolution of which the return brings its cause.

In particular, it will not be necessary to wait for the finality of the resolution in the case of a tax settlement or other settlement or settlement of the same Administration against which no other resource than that which may be The same creditor of the return.

Art. 11. Payment.

1. Payment orders or orders for tax refunds shall be issued by the Heads of the organs or units of collection and the payments shall be ordered by the Director General of the Treasury and Financial Policy, by the Delegates and Administrators of the Treasury or of Customs or of the competent bodies of the Entes or Agencies endowed with differentiated budgets, in the terms established by the Minister of Economy and Finance.

2. The payment of the amount to be returned shall be made by cross check against the current account of the Public Treasury at the Banco de España or via bank transfer to the account that the interested person or legal representative has open in a Credit Entity.

When the procedure for the recognition of the right to return has been initiated at the request of the person concerned, the declaration made by the person concerned shall be in accordance with the written procedure.

Art. 12. Compensation.

Return by compensation may be made at the request of the person concerned or on his own initiative by the competent bodies in accordance with the procedure laid down in the General Rules of Collection.

Art. 13. Rules for budgetary allocation.

Any refund of a tax nature will be carried out, for its full amount, to the budgetary concept that reflects the tax revenues of the same nature as the one that originated the refund and will apply to the current budget.

This implementation will be carried out in any case, even if there is insufficient collection in the specific concept of the Revenue Budget to undermine and even if this budgetary concept has disappeared.

Art. 14. Collective files.

The Minister of Economy and Finance will establish the formal conditions or requirements to be subject to the collective files for the payment of returns of a tax nature.

The Finance Delegates or the top authority of the Center, the Agency or the Ente that corresponds, may authorize the processing of such returns of a tax nature by collective file advise you.

CHAPTER IV

Complementary provisions

Art. 15. Return of surcharges or taxes transferred or established in favor of public administrations other than that of the State.

1. If the income unduly made includes or relates to a surcharge, on a State tribute, or a tribute whose income corresponds to an Autonomous Community or Local Entity, the resulting return shall be carried out in accordance with the following criteria:

(a) When a tax authority is entrusted, in full, with the management of the corresponding surcharge or tax, the refund shall be recognised and practiced by the competent authorities of that tax administration.

(b) Where the liquidation and collection of the surcharge or tax are related to different tax administrations, the refund shall be recognised and practiced by the body which has assumed the collection at the time when the the return is applicable.

Dealing with deleted taxes will be treated to those who have assumed their collection at the time of the undue income.

(c) However, it shall be for the competent administration for the settlement of the surcharge or charge to issue the resolution that proceeds by recognizing the right to return, where the undue income has been motivated by a declaration-settlement or self-settlement or by a material error of fact or arithmetic in an act dictated by that act.

2. If the refund has been applied by the State, the State shall deduct its amount from the collection carried out in favour of the Autonomous Community or the recipient entity or to another concept that originates payments in favour of those.

3. In any case, in the case of taxes transferred to the Autonomous Communities, the return will be the responsibility of the Autonomous Communities in accordance with the respective Law of Cession.

Art. 16. Waiver and termination of penalties.

1. The offenders shall be entitled to the refund of the amounts paid in respect of pecuniary penalties where this is the result of the exercise of the powers of grace provided for in the legal order in respect of the tax penalties. In addition, the heirs or successors in title of the offender shall be entitled to the refund of the amounts paid in respect of pecuniary penalties, where the death of the offending subject takes place before the act of imposition of those.

2. The Resolution of the competent Economic and Administrative Tribunal, agreeing to the graciable remission of a tax penalty, once published in the "Official Gazette of the State", will serve to ensure that in its execution the corresponding return is carried out. Similarly, the declaration that the liability arising from an infringement has been extinguished because of the death of the offender will be extinguished.

3. In these cases, the provisions of Article 45 of the recast text of the General Budget Law, adopted by Royal Decree No 1091/1988 of 23 September 1988, will be applied without the return of the premium for the award and the the costs and interests of the procedure in the case of a reasonable remission of tax penalties.

4. The right to refunds of a tax nature referred to in this Article shall be prescribed at the age of five, from the day on which the judgment was notified by agreeing to the grace or death of the subject. infringer.

This period will be interrupted in the same way as provided for in Article 3. of this Royal Decree.

Art. 17. Return of income realized through the use of timbrated effects.

The Minister of Economy and Finance is hereby authorized to establish the procedure and peculiarities of the return of undue income made in the Public Treasury through the use of timbrated effects.

ADDITIONAL PROVISIONS

First. Territorial scope.

The provisions of this Royal Decree must be without prejudice to the foral tax regimes of concert or convention, in force in the Historical Territories of the Basque Country and in the Community of Navarra, respectively.

Second. Review procedures.

No tax revenue shall be repaid by virtue of administrative acts which have become final.

However, the tax authorities will be able to request the return of income made at the Treasury, urging the review of those acts dictated by way of tax management that would have been incurred as a result of the (a) full rights, which are manifestly in breach of the law or which are in any other alleged analogous to Articles 153, 154 and 171 of the General Tax Law and in the laws or special provisions.

Third. Request for rectification of a declaration-settlement or self-settlement.

1. Where a taxable person considers that a declaration-settlement or self-settlement made by him has in any way prejudiced his legitimate interests, without giving rise to an undue income, he may urge his/her correction of the competent body of the. Tax administration.

2. This application may be made once the corresponding declaration-settlement or self-settlement has been filed and before the Administration has been established definitively or, failing that, to have prescribed the right of the Administration to determine the tax liability by timely settlement ..

When the Administration has issued an interim settlement, the tax obligor may still request the rectification or confirmation of its initial settlement or self-settlement, if the provisional settlement has been By correcting those for reasons other than the one that now originates the tax obligation.

3. After having been instructed, the Administration shall give the decision as appropriate. After three months without the tax administration notifying its decision, the tax authority may wait for the express resolution of its request or, without the need to denounce the default, to consider confirmed by administrative silence its decision. initial declaration-settlement or self-settlement, to the effect of deducting, in the face of this alleged resolution, the corresponding resource or claim.

Fourth. Regulatory modifications.

Article 121 of the Rules of Procedure for Economic and Administrative Claims, approved by Royal Decree 1999/1981 of 20 August, is worded as follows:

" Article 121. Challenging certain resolutions derived from a self-validation.

The express or presumed decision that the tax administration will dictate as a result of having urged the taxable person or tax payer to rectify his declaration-liquidation or self-settlement, will be liable for impeachment. on an economic-administrative path. "

Fifth. Scope of application.

1. In accordance with the second paragraph of Article 14 of Law 39/1988 of 28 December 1988, the regulator of local authorities, the refund of undue income in the field of local taxes shall be in accordance with the provisions of Article 155 of the Treaty. Tax General Law and in this Royal Decree, being carried out by the organs in each competent case of these Entities.

2. The provisions of this Royal Decree shall be applied as a supplement to the returns of amounts which constitute revenue under public law, other than taxes.

3. Returns of a tax nature, other than refunds of undue income, provided for in the specific rules of the various taxes or in the common legal system of the tax system will continue to be governed by their own provisions. However, the rules contained in Articles 11, 13 and 14 of this Royal Decree shall apply to all refunds of a tax nature.

4. Refunds of undue revenue in respect of import and export duties shall be governed by the Regulations of the European Economic Community which are specifically applicable to them, with the additional provisions contained in this Royal Decree, where permitted by the Community legal order.

TRANSIENT PROVISIONS

First.

The tax return files of a tax nature already initiated prior to the validity of this Royal Decree will be dealt with and will be resolved in accordance with the current provisions.

Second.

However, the provisions of Article 8. of this Royal Decree and in its third provision, third, shall apply to statements-settlements or self-settlement in respect of which, upon entry into force of this provision, has not prescribed the right of the Administration to determine the tax liability and the timely liquidation has not been carried out.

Third.

In accordance with the first paragraph of Article 15 of Law 20/1989 of 28 July, no refunds or refunds shall be made on the basis of the accumulated taxation of relatons or assets of taxable persons. a family unit in relation to the self-actions submitted prior to the publication in the "Official State Gazette" of the judgment of the Constitutional Court 45/1989 of 20 February.

Fourth.

As long as the Minister of Economy and Finance does not make use of the authorization contained in Article 17 of this Royal Decree, the return of undue income made through the use of timbrated effects will be made the provisions of the Order of 11 January 1983.

REPEAL provisions

First.

Without prejudice to the previous transitional provision and since the entry into force of this Royal Decree, any provisions of the same or lower rank shall be repealed.

Second.

In particular, the following provisions are repealed:

(a) The Royal Decree of 25 February 1890 laying down fundamental rules on the procedure to be followed for the return of amounts agreed by the Finance Delegates.

(b) Articles 6 and 118 of the Rules of Procedure for Economic and Administrative Claims approved by Royal Decree of 29 July 1924.

c) Articles 217 to 219 of the Royal Rights Tax Regulation, approved by Royal Decree 176/1959, of January 15.

(d) The Order of 22 December 1972 on the procedure for the return of undue income corresponding to contributions, taxes or income in force.

(e) The fourth paragraph of the Order of 24 July 1985 regulating the accounting of certain transactions resulting from the management of taxes.

FINAL DISPOSITION

First.

This Royal Decree will enter into force on the day following its publication in the "Official State Gazette".

Second.

In addition to those obtained by authorizations contained in the articles of this Royal Decree, the Minister of Economy and Finance will dictate how many provisions are necessary for the application of that.

Given in Madrid to September 21, 1990.

JOHN CARLOS R.

The Minister of Economy and Finance,

CARLOS SOLCHAGA CATALAN